Bradley v. School Board of the City of Richmond Petition for Rehearing En Banc
Public Court Documents
November 10, 1970

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Brief Collection, LDF Court Filings. Bradley v. School Board of the City of Richmond Petition for Rehearing En Banc, 1970. 00caaac6-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4bdf936b-e516-43af-a143-19cb762842d8/bradley-v-school-board-of-the-city-of-richmond-petition-for-rehearing-en-banc. Accessed April 19, 2025.
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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT NOS. 15,178 to 15, 182 CAROLYN BRADLEY, et al., Plaintiffs-Appellants- Appellees vs. THE SCHOOL BOARD OF THE CITY OF RICHMOND, et al., Defendants-Appellees- Appellants PETITION FOR REHEARING EN BANC Plaintiffs-appellants in No. 15,178 Carolyn Bradley, et al., by their undersigned counsel, respectfully pray that this Court grant rehearing en banc of its November 6, 1970 order on defendant-appellee's Motion For Enlargement of Time to File Briefs. I To seek rehearing of a decision on a procedural motion is extraordinary. But this Court's granting of the Richmond School Board's motion to delay this appeal, and its order establishing a briefing schedule which postpones that normally required by the Federal Rules of Appellate Procedure instead of expediting these appeals, are themselves extraordinary. They compel plain tiffs to seek reconsideration. II This Court has in the past been a consistent leader in the stringent application of Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969) and Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970). E .q., Nesbit v. Statesville City Board of Education, 418 F.2d 1040 (4th Cir. 1969); Stanley v. Darlington County Board of Education, 424 F.2d 195 (4th Cir.), cert, denied, 397 U.S. 1066, 398 U.S. 909 (1970); United States v. Franklin City Board of Education, 428 F.2d 373 (4th Cir. 1970). In this very case, the Chief Judge denied a stay of the very plan from implementation of which the Richmond School Board appeals. Bradley v. School Board of Richmond. Misc. No. 689 (4th Cir., August 28, 1970) (unreported order of Haynsworth, C.J.). It is all the more anomalous, then, for this Court to now establish a schedule which absolutely negates the possibility of any relief to vindicate plaintiffs' constitutional rights during the 1970-71 school year, despite the fact that Notice of Appeal was filed August 19, 1970. The first period of delay in this appeal followed the filing of Notice of Appeal by five parties to the lawsuit. 2 Although plaintiffs filed their appeal first on August 18, 1970, and tendered the docketing fee, the appeal was not docketed until October 19, 1970 because of the practice of the Clerk's Office to await payment of all docketing fees in cases of multiple appeals from a single judgment before docket ing any appeal. The briefing schedule established in this Court's November 6 order makes submission of this case and calendaring for argument impossible until at least 70 days after a Supreme Court decision whose announcement is completely uncertain. Even were the Swann and Mobile cases decided tomorrow, the leisurely pace set by this Court's order would virtually insure that no decision could be handed down until well after the second semester of the current school year had commenced. Plaintiffs' contention on this appeal is that the court below failed to adopt the complete desegregation plan in the record which it expressly found to meet the "feasibility" standards of Green v. County School Board of New Kent County, 391 U.S. 430 (1968) and the "reasonableness" test of this Court's decision in Swann v. Charlotte-Mecklenburg Board of Education, No. 14,517 (4th Cir., May 26, 1970), cert, granted, 399 U.S. 926 (1970). In that context, Alexander requires that such a plan be implemented pendente lite. Yet this Court's briefing schedule 3 makes very unlikely even the ultimate implementation of con stitutional rights until 1971-72. Ill The notion that there is no constitutional defect in post poning further decision-making in school desegregation cases until the Supreme Court rules in Swann and Mobile is clearly in error. In the first place, it is directly contradictory to Alexander, supra, and Carter, surpa. This is especially so because resumption of the judicial process in this case has been made dependent upon a contingency, the date of a completely uncertain event. The Supreme Court's decision may come tomorrow or it may not be handed down until the end of the current term, or at any other point along that continuum. But there is another possibility even more depreciative of plaintiffs' rights to an adjudication of their claims — the Supreme Court may hold the cases over to another Term for reargument. Compare Brown v. Board of Education, prob. juris. noted. 344 U.S. 1 (1952), set down for reargument, 345 U.S. 972 (1953), set down for further argument, 347 U.S. 483 (1954), see 349 U.S. 294 (1955). Plaintiffs brought this case in the United States District Court for the Eastern District of Virginia, 28 U.S.C. § 1343. From the decision of that Court, they perfected an appeal to 4 this Court, 28 U.S.C. § 1291. This matter is properly before this Court, not the Supreme Court. Plaintiffs are entitled to an adjudication of their claims by this Court without reference to Supreme Court action in another case, the pre diction of which is at best hypothetical as to both the timing of the decision and its content. This is particularly true because both Swann and Mobile can be disposed of by the Supreme Court on grounds which will not advance the decision of this case. In Swann v. Charlotte-Mecklenburg Board of Education, No. 281, O.T. 1970, the Court may determine that the case is an inappropriate one to measure the "reasonableness" test laid down by this Court since on remand, the district court found its original order to meet that test. Accordingly, the Court may affirm both this Court and the district court on the ground that under the particular facts, the district court did not abuse its discretion by going too far in devising a remedy. See Brief in Nos. 281, and 349, passim. In Davis v. Board of School Commissioners of Mobile County. No. 436, O.T. 1970, the Court may reverse because of the dis trict court's failure to afford petitioners an evidentiary hearing. See Brief for Petitoners in No. 436, pp. 80-84. We submit that these holdings, or others similar thereto, would not materially aid this Court in disposing of this case. 5 IV Plaintiffs-appellants can understand and sympathize with this Court's desire to have a statement of the applic able law from the Supreme Court that clearly establishes simple rules for decision in other cases. If past history is any guide, however, the hope for such a talismanic opinion is illusory. What the Courts may believe to be clear state ments are often regarded as highly ambiguous by the parties. E .g., Northcross v. Board of Education of Memphis, 396 U.S. 232, 236-37 (1970) (Mr. Chief Justice Burger, concurring); cf. Swann v. Charlotte-Mecklenburg Board of Education, No. 14,517 (4th Cir., May 26, 1970) (Sobeloff, J., dissenting). But there is another problem, and one which goes to the heart of our judicial system. Our courts and our Constitution are founded upon the notion that constitutional rights will be protected and claims adjudicated by an independent judiciary which decides cases on the evidence and arguments before it according to its best understanding of the law. See, e .g., Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). In those unusual circumstances in which a lower court is unable to render a determination, special procedures are provided. 28 U.S.C. § 1254(3), 1292(b). The determination by a court to withhold decision and postpone adjudication amounts to denial of the substantive rights sought to be enforced. It is an abdication of function 6 which denies and despoils our judicial system. The logic of this Court's November 6, 1970 order would seem to apply to other substantive areas. Shall lower courts abstain from any proceedings in habeas corpus or other actions brought by men under sentence of death until the Supreme Court passes upon all the challenges to capital punishment? Shall all the district courts in this Circuit suspend further proceedings in school desegregation cases until this Court's decision herein after the Supreme Court rules in Swann and Mobile? The Supreme Court itself has declined to stay proceedings in school desegregation cases, or implementation of plans in such cases, pending decision in Swann and Mobile. E .g., Winston-Salem - Forsyth County Board of Education v. Scott; Board of Public Instruction of Broward County v. Allen; Dade County School Board v. Pate (unreported orders of August 25, 1970); Board of Public Instruction of Duval County v. Braxton (unreported order of Mr. Justice Black, September 8, 1970). The district court in this case found that the plan pro posed by plaintiffs' expert witness could be implemented for 1970-71 but he declined to order it implemented. Plaintiffs- appellants attack that decision, but this Court's procedural order effectively denies them any opportunity to establish that substantive right for 1970-71. 7 We urge the Court to reconsider, and to expedite these appeals. Respectfully submitted, , f / JACK GREENBERG / JAMES M. NABRIT, III NORMAN J. CHACHKIN 10 Columbus Circle New York, New York 10019 O ' , LOUIS R. LUCAS 525 Commerce Title Bldg. Memphis, Tennessee 38103 JAMES R. OLPHIN 214 East Clay Street Richmond, Virginia 23219 M. RALPH PAGE420 North 1st Street Richmond, Virginia 23219 Attorneys for Plaintiffs-Appellants- Appellees 8 CERTIFICATE OF SERVICE I hereby certify that on this 10th day of November 1970, I served a copy of the foregoing Petition for Rehear ing En Banc upon counsel for all parties herein by United States mail, air mail postage prepaid, as follows: Conard B. Mattox, Jr. City Attorney 420 City Hall Richmond, Virginia 23219 George B. Little 1510 Ross Building Richmond, Virginia 23219 Walter E. Rogers Frederick T. Gray 510 United Virginia Bank Bldg. Richmond, Vriginia 23219 John S. Battle, Jr. 1400 Ross Building Richmond, Virginia 23219 E. G. Allen, Jr. 2nd floor, Massey Building Fourth and Main Streets Richmond, Virginia 23219 Attorney for Plaintiffs-Appellants- Appellees '